Massachusetts Criminal Defense Lawyer Blog

As a Massachusetts criminal defense lawyer, the Commonwealth v. Botev, decided April 15, 2011, raises an interesting issue that is important in defending criminal charges. In many criminal cases, the ability of the alleged victim to identify the defendant as the individual who committed the offense will be a prominent issue in the case. That was the case in a bench trial on the charge of Open and Gross Lewdness brought by the Millis police that was heard in the Wrentham District Court in February 2010.

In the Botev case, the defendant was convicted of open and gross conduct when the testimony at trial was that he exposed himself to two fifteen year-old girls while in a park in Millis. The issue at trial was whether the victims could identify the defendant. The victims were shown a photographic array that included the defendant. The victims identified the defendant but with uncertain language; one victim stated that the picture looked like the defendant while the other stated that it was most like him.

The Wrentham, Massachusetts criminal lawyer in the case filed a motion to suppress the photographic identification, claiming that it was unnecessarily suggestive. Improper identifications are a leading cause of wrongful convictions. When the police identification is improperly suggestive, a defendant's right of due process and effective confrontation under the Sixth Amendment are infringed because the victim's wrongful identification becomes imprinted in the memory of the victim. Because identification testimony is crucial during a criminal trial and is difficult to overcome through cross examination, courts will exclude an unnecessarily suggestive identification because a suggestive identification denies the defendant due process and a fair trial.

The Massachusetts case that sets forth this rule is a case from the Supreme Judicial Court called Commonwealth v. Botelho, 369 Mass. 860 (1976). The exception to this rule requiring exclusion of the identification is when the Commonwealth can show that the identification had an independent source other than the suggestive identification.

It appears that when the Massachusetts criminal attorney requested a suppression hearing, requiring the victims to testify live about their identification of the defendant, that the motion judge held an identification procedure where the defendant was in the courtroom while the victims were given an opportunity to see if they could identify the defendant.

The victims identified the defendant from the gallery in the first session of the Wrentham District Court and, at trial, the trial judge allowed the identification, concluding that it had an independent source.

Identification case can involve difficulty strategic decisions for criminal attorneys. Had the victims not identified the defendant during the in-court identification, the case would likely have been dismissed. Alternatively, counsel could have chosen not to raise the identification issue prior to trial and contested it at trial. In this case, it appears as though the motion judge was not going to permit an evidentiary hearing on the issue of identification as the judge ordered the in-court identification.

One problem complicating the decision of the Massachusetts criminal lawyer in the case was that the circumstantial evidence in the case confirmed the reliability of the identification as the defendant was observed for 45 seconds, the victim testified that the defendant spoke with an accent and the defendant was found in oddly clad in boxer shorts when arrested by the police officer shortly after the incident.

Assuming the defendant did not have a prior conviction for open and gross, the conviction in this case would not require him to register as a sex offender as only a second and subsequent offense of open and gross lewdness requires sex offender registration.